IP: DMCA applies to the whole world, prosecutors say

[David Farber <dave () farber net>]

> Date: Tue, 12 Feb 2002 09:38:42 -0500
> To: David Farber <dave () farber net>
> From: Mike Godwin <mnemonic () well com>
>
>
> Dave, it's interesting that at the same time some in the government argue 
> that U.S. constitutional projections don't apply to the prisoners held at 
> Guantanamo, other government officials are insisting that the DMCA applies 
> universally.
>
>
> --Mike
>
>
>               WARREN'S WASHINGTON INTERNET DAILY
>
>    Tuesday, February 12, 2002                    Vol. 3, No. 29
>
>  WORLDWIDE DMCA applicability claimed by federal prosecutors in
>  Elcomsoft copyright case.  Internet said to make it impossible to
>  apply only within U.S.  (P. 1)
>
>        U.S. Prosecutors Claim DMCA Applies Around the Globe
>
>        SAN JOSE -- The Digital Millennium Copyright Act properly
>  applies to activity outside the U.S., federal prosecutors said in
>  their case against a Russian company charged with selling software
>  decrypting Adobe e-Books.  "A construction of the DMCA that
>  applied it only within the borders of the United States would
>  thwart Congress's intent to prevent circumvention technology from
>  being available," the San Jose U.S. Attorney's Office told U.S.
>  Dist. Judge Ronald Whyte in papers filed late last week.  "The
>  ease with which materials can be moved around the Internet makes
>  it impossible to conceive of an effective DMCA statute that
>  applied solely within the United States."  That construction was
>  Congress's intent, as shown by its prohibition against importation
>  of certain technology, prosecutors argued.
>
>        Prosecutors said the judge didn't need to decide that issue,
>  however, because Elcomsoft was subject to prosecution for conduct
>  within the U.S.  The company offered its program through a Chicago
>  server, took payment through a Washington state firm, sold the
>  software to U.S. customers, promoted it at a Las Vegas conference,
>  sought U.S. copyright protection and intended an effect in the
>  U.S., they said.  Further, the prosecution comports with
>  international law as a reasonable application of U.S. law in
>  protection of the country''s territoriality and nationality, the
>  filing said.
>
>        Prosecutors also sought to rebut defense arguments that
>  Elcomsoft had been charged improperly with conspiracy in a case
>  involving only its programmer, Dmitry Sklyarov, who no longer is
>  charged, and no one outside the company.  The indictment refers to
>  unnamed co-conspirators.  The 9th U.S. Appeals Court, San
>  Francisco, and others recognize the legitimacy of charging
>  intracorporate conspiracies, the prosecutors said.  Contrary
>  statements in First (Boston) and 10th (Denver) Appeals Courts
>  opinions cited by the defense were merely dicta, prosecutors
>  contend.
>
>        The extraterritoriality and conspiracy issues are set for
>  hearing March 4.  Prosecutors are scheduled to file within 2 weeks
>  responses to challenges to DMCA''s constitutionality. -- Louis
>  Trager
>
> --
> --------------------------------------------------------------------
> "I speak the password primeval .... I give the sign of democracy ...."
>            --Walt Whitman
> Mike Godwin can be reached by phone at 202-637-9800
> His book, CYBER RIGHTS, can be ordered at
>         http://www.panix.com/~mnemonic .
> --------------------------------------------------------------------

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